There are numerous avenues for immigration to Australia. This includes both the various visas available to prospective immigrants and their application procedures. Whilst it is possible to apply without assistance, it is not typically recommended. There are tens of thousands of pages of immigration and migration-related legislation and numerous pitfalls.
People typically have two options when seeking assistance: an Immigration Lawyer or an Immigration Consultant. Unsurprisingly, there is considerable confusion regarding the distinction, if any, between these two positions. This is made worse by the fact that there is a substantial overlap between the two.
An immigration consultant is a professional who provides advice and assistance on all aspects of Australian migration law and procedure. They are registered with the Migration Agents Registration Authority (MARA) and must adhere to a strict code of conduct.
An immigration lawyer, on the other hand, is a qualified legal practitioner who is also registered with MARA. Lawyers can represent their clients in court, whereas consultants do not.
So, if you’re considering migrating to Australia, you may be wondering about the different types of professionals who can help with the process.
Here’s a quick guide to the differences between an immigration consultant and an immigration lawyer in Australia.
Agents of migration are required to:
- Completed a 6-month training program and passed the examinations
- Apply for the Office of the Migration Agents Registration Authority (OMARA) registration
Immigration lawyers are expected to:
- Complete a Bachelor of Laws degree (minimum 3 years)
- Undergo practical legal training and work experience
- Apply to the Supreme Court for admission as a lawyer
- Apply for a practising certificate with the State’s Legal Practice Board
- Apply for registration with OMARA
Nonetheless, once the Migration Amendment (Regulation of Migration Agents) Bill 2018 is enacted, dual regulation for lawyers will be eliminated, as lawyers will be removed from the MARA regulatory system.
The Bill will also have implications for migration agents, including a two-year transition period of dual registration for migration agents who become lawyers, allowing them to continue to operate their migration agent business as agents whilst receiving supervision as required for their legal practising certificate.
Existing lawyers are now required to be OMARA-registered to provide migration advice to clients, so the Bill is also expected to have a positive impact on this group. If the bill is passed, any Australian lawyer with a practising certificate will be able to advise clients on migration matters, just as they can in other areas of law.
Level of Expertise
Immigration law is a highly complex field in which the legislative and regulatory requirements that govern the immigration framework are constantly evolving. Immigration law operates in the context of extensive legislation, voluminous policy guidelines, parliamentary directives and more than 150 visa categories.
Immigration lawyers are more likely to have a deeper understanding of the migration regime and to be trained to apply the relevant laws, so selecting a migration consultant with a legal background may be crucial for achieving the best possible outcome for your application.
Invoking Law–Client Privilege
This concept of ‘legal professional privilege’ serves as a significant dividing line between migration agents and immigration lawyers. Whilst migration agents are required to keep client communications confidential, only lawyers can assert legal professional privilege.
This means that an immigration lawyer cannot reveal any of your personal information or communications to the Department of Home Affairs, even if they are requested to be used as evidence against you if you are investigated or prosecuted. However, any information you provide to a migration agent is not protected by lawyer–client privilege, and the agent will be required to disclose your information if requested.
Standards of Conduct
Migration agents are held accountable for adhering to the following standards of conduct:
- The code of conduct established by OMARA.
Immigration lawyers are accountable for the following:
- Legal Profession Act
- Legal Professional Conduct Rules
- Law Society Ethical and Practice Guidelines
- OMARA code of conduct all play a role in the regulation of the legal profession
Characteristics of Service
Advice and visa applications comprise the majority of the migration-related services offered. However, it also includes appealing to Tribunals and Courts in any required migration decision review processes.
Whilst a migration agent can assist with the visa application process and the Administrative Appeals Tribunal appeals about a cancellation or refusal decision, certain matters require an appeal to the Commonwealth Courts of Australia. If this is the case, you cannot be represented in court by a migration agent.
An immigration lawyer can provide the same services as a migration agent, as well as full legal representation in court and advice on other legal matters relating to your immigration concerns.
Migration law is an extremely significant area of law in Australia, with far-reaching implications for all parties involved. It is therefore essential to have the best legal counsel and representation to maximise your migration opportunities.
For these reasons, you must be aware of the experience of the migration consultant you intend to hire, whether they have previously handled cases similar to yours and the length of time they have been practising in the field.
If you are thinking about making the move to Australia, keep in mind that the complexity of Australia’s migration laws means that it is in your best interest to seek professional help from a registered migration agent or an immigration lawyer.
Only a registered migration agent or an immigration lawyer can give you personalised advice about your particular circumstances. Do not engage the services of someone who is not registered with MARA or OMARA.
You should also be aware that several unregistered migration agents are happy to provide services without being registered. These individuals are not subject to the same compliance requirements as registered agents, and as such, you have no guarantee of their professional conduct or quality of service.
You can search the MARA and OMARA registers to check if someone is registered. The registers will also tell you when an agent’s registration expires and whether there are any conditions on their registration.
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